Monday, July 12, 2010

Last month, the Supreme Court exposed Americans to jail sentences of up to 15 years just for giving advice to groups the U.S. government considers untouchable. In Holder v. Humanitarian Law Project, the court ruled that the USA Patriot Act's expanded definition of “material support” for “foreign terrorist organizations” passes Constitutional muster. The broad wording of the statute not only makes it a crime to support violent activities, but also prohibits Americans from offering "services" or "training, expert advice or assistance" to any entity designated as a terrorist group.

Providing weapons, materials or know-how that might help terrorists commit violent acts has long been a crime, but it was only with the rushed passage of the Patriot Act just weeks following the 9/11 attacks that “expert advice or assistance” was added to the definition of “material support.”

The Constitution offers Americans the freedom of speech and association. There are only a few exceptions -- you don’t have a right to associate with people conducting a criminal act, and your freedom of speech doesn’t extend to "fighting words," inciting a riot or other forms of speech that might lead to violence.

In criminalizing non-violent speech, the ruling is anathema to our system of constitutional government. In this article I’ll demonstrate just how easy it is to violate the Patriot Act by giving some peaceful advice to a few of the 45 groups the State Department has designated as foreign terrorist organizations.

To Hezbollah: Domestic politics aside, the legitimacy of your organization rests on its ability to provide social services and its participation in Lebanese politics, not from your paramilitary wing’s clashes with the Israeli Defense Forces. Lay down your arms and consolidate your political strength.

To the Revolutionary Armed Forces of Colombia (FARC): Consider re-establishing the Guerrilla Coordinating Board you joined in order to negotiate with the Colombian government. Re-establish prisoner exchanges with Bogotá as a confidence builder, and stop the policy of assassinating indigenous peoples who oppose your agenda.

To the Real Irish Republican Army: Given the history and reality on the ground, it’s virtually impossible to achieve independence and unification of Ireland by force. Disband your military organization and join the 10-year-old peace process. And engage with the government in Northern Ireland, which has attained political legitimacy along the way.

The Supreme Court has ruled that if I leave it at that -- expressing my own views without being in contact with any group designated as a terrorist organization -- I’m fine. But if I send this column to an official of Hezbollah or FARC -- if I communicate with them directly -- I’ll be committing a serious crime.

When the “material support” statute was first enacted in the 1990s, a person didn’t need to know that a group they supported was listed as a terrorist organization in order to run afoul of the law. But after a district court agreed to hear a challenge to the provision, Congress modified the law so that people who, for example, unwittingly sent a few bucks to a charity that turned out to be associated with terrorism would be in the clear. However, in places like Gaza, where Hamas controls a lot of ground, it’s virtually impossible to deliver humanitarian relief without talking to members of a “terrorist” organization.

Since 2001, Islamic charities have struggled to deal with the uncertainty caused by the material support provision. According to the Bill of Rights Defense Committee, “Muslims fulfilling their obligation to contribute to [charity]…risk inadvertently supporting a current or future [Foreign Terrorist Organization]. In 2004, in order to avoid this, Muslim leaders asked the DOJ for a list of acceptable charities. The DOJ responded that their request was ‘impossible to fulfill’ and that it was ‘not in a position to put out lists of any kind, particularly of any organizations that are good or bad.’" Several people have already been jailed in the United States for their charitable activities in the Islamic world.

Holder v. Humanitarian Law Project

The court handed down its decision in a case brought by the Humanitarian Law Project, an NGO that sought to advise the Kurdistan Worker’s Party (PKK) -- which the U.S. considers a terrorist organization -- on filing human rights complaints with the United Nations and conducting peace negotiations with the Turkish government. In its 6-3 decision, the supremes ruled that the statute didn’t trample the organization’s members’ rights to free speech and free assembly as long as they had no direct contact with the PKK. Ironically, in theory that means members of the Humanitarian Law Project can publicly urge the PKK to carry out deadly acts of terrorism without running afoul of the law, but they can’t work with the group in an effort to stop the violence.

The decision casts the court’s rightward balance in sharp relief. Just months ago, the same court ruled in the Citizens United case that the government doesn’t have a sufficiently compelling interest in limiting political campaign dollars to infringe on the free speech rights of corporations -- “artificial persons.” But the court, dismissing the admonition that those who would give up essential liberties for some temporary security deserve neither, was quick to accept the Justice Department’s claim that fighting terrorism trumps the rights of the Humanitarian Law Project. Writing for the majority, Chief Justice John Roberts cited the Federalist Papers, which held that "security against foreign danger" is an "avowed and essential object" of the U.S. government.

Opening the Door for (More) Political Prosecutions

Arguably, the most fundamental flaw in the statute is that there is no apolitical and universally accepted definition of “terrorism.” The United Nations has wrangled with the issue for years, and the major obstacle is simple to understand: everyone wants to define it as political violence in furtherance of a goal with which they disagree.

By criminalizing even a tenuous association with groups the U.S. government lists as terrorist organizations, the statute opens the door to prosecuting people for taking unpopular sides in remote conflicts.

Sometimes, however, history proves those people were on the “right” side. Perhaps the most obvious example is the African National Congress (ANC), which the United States designated as a terrorist organization during the 1980s. If the Patriot Act had been in effect at the time, any U.S. citizen who communicated with the ANC while organizing opposition to South Africa’s racist system would have been eligible for a lengthy prison term. Now, it's the ruling party in today’s post-apartheid South Africa.

The ANC isn’t the only example. In the early 1990s, Robert Gelbard, Bill Clinton's special envoy to the Balkans, described the Kosovo Liberation Army as, "without any questions, a terrorist group." As journalist Michael Moran noted, by the end of the decade, “the United States had embraced the KLA's cause,” and, “after the war, the KLA was transformed into the Kosovo Protection Corps, which now works alongside NATO forces patrolling the province.”

An American may have sided with the Serbs or with the KLA, but if the Patriot Act had been in effect, engaging the latter would have constituted a serious crime. Other groups once designated as terrorist organizations that have either laid down their arms or joined the political process include the Irish Republican Army and the Palestine Liberation Organization.

At the same time, some organizations that commit terrible crimes against civilians never make the list because their goals dovetail with our own. Sometimes we even support them. During the 1980s, the Nicaraguan contras were known to torture, rape and kill innocent civilians sympathetic to the Sandinistas, but Ronald Reagan praised the group as heroic “freedom fighters.” In Iran, the Mujahedin-e Kalq (MEK) is universally condemned as a terrorist organization, and the United States government has listed it as one. But that didn’t stop former Colorado Rep. Tom Tancredo from saying, “We should be aiding them, instead of restricting their activities. We can use the MEK; they are in fact warriors. Where we need to use that kind of force, we can use them."

It’s worth noting that Islamic groups lead the list of designated terrorist organizations, followed by communists and nationalists. Groups like the Gush Emunim Underground -- a radical Israeli settler group that was responsible for a series of attacks against Palestinian civilians -- don’t make the cut. It’s a clear signal that the State Department’s list is highly politicized.

Making matters worse is the fact that some organizations that have committed acts of terrorism also have legitimate political arms with which humanitarian aid organizations must communicate in order to do their work. In Lebanon, Hezbollah is both a paramilitary group and a major player in the country’s political scene. It provides social services -- operating schools and hospitals -- but is designated a terrorist organization by the United States. As a result, American aid workers won’t be able to operate in much of Lebanon without risking criminal prosecution.

Criminalizing Peacemaking

As journalist Courtney Martin noted, “the definition of material support includes everything from providing aid to distributing literature to political advocacy,” adding that it’s “a step in the wrong direction for the post-September 11 world.”

The law essentially criminalizes promoting dialogue in conflict zones and undermines efforts to provide nonviolent solutions to previously violent groups, equating such actions with trafficking weapons. In a world that demands precise, strategic interventions to prevent and curb terrorism, this law is like a blunt object. We're not promoting peace; we're advocating the equivalent of the silent treatment.

In the 1980s, a concept known as “multi-track diplomacy” emerged. Traditional negotiations between states -- known as “track one” diplomacy -- had had limited success, in part because states couldn’t always negotiate with non-state actors like rebel groups. Experts in conflict resolution began to see how non-state actors -- professional conflict negotiators, institutions like the UN, international businesses, religious organizations and other members of civil society -- could play a great role in bringing long-standing, seemingly intractable conflicts to an end. “Track two” diplomacy (some academics further divide track two into various other tracks) was crucial in bringing peace to Northern Ireland. In Mozambique, a bloody 17-year civil war ended when the Order of Sant' Egidio, an Italian NGO, mediated peace talks between the various parties to the conflict.

The group, which believes that “war is the mother of all poverty,” continues its peacemaking efforts in the Congo and the Balkans. An American NGO that tried to emulate its success would be violating the Patriot Act, exposing its members to harsh criminal penalties.

Writing for the majority, Chief Justice Roberts claimed that direct contact of any kind with Americans “also importantly helps lend legitimacy to foreign terrorist groups -- legitimacy that makes it easier for those groups to persist, to recruit members, and to raise funds -- all of which facilitate more terrorist attacks."

It’s an ironic statement in a ruling that prohibits Americans from acting as peacemakers or aiding people in crisis. There’s broad agreement that winning the “war on terror” requires isolating extremists, and winning the hearts and minds of the populations of the countries in which they operate. The rest of the world will continue to see complex conflicts as just that -- complex. In its decision, the court codified a dangerous tendency to see them in black and white, one that has prevailed in the U.S. since the attacks of 9/11.

The rest of the world will continue to see multi-track diplomacy as an example of best practices for resolving deeply entrenched conflicts. It will continue to see humanitarian relief and the engagement of civil society as crucially important to winning the battle of ideas and marginalizing violent actors.

But with the threat of a criminal rap, there won’t be many Americans involved in those efforts. In its fear-based logic, the court sought to isolate violent extremists, but its decision will only end up isolating the United States.

Hit Counter

Fair Use Notice

§ 107. Limitations on exclusive rights: Fair use40
Notwithstanding the provisions of sections 106 and 106A, the fair use of a copyrighted work, including such use by reproduction in copies or phonorecords or by any other means specified by that section, for purposes such as criticism, comment, news reporting, teaching (including multiple copies for classroom use), scholarship, or research, is not an infringement of copyright. In determining whether the use made of a work in any particular case is a fair use the factors to be considered shall include —
(1) the purpose and character of the use, including whether such use is of a commercial nature or is for nonprofit educational purposes;
(2) the nature of the copyrighted work;
(3) the amount and substantiality of the portion used in relation to the copyrighted work as a whole; and
(4) the effect of the use upon the potential market for or value of the copyrighted work.
The fact that a work is unpublished shall not itself bar a finding of fair use if such finding is made upon consideration of all the above factors.